“In all criminal prosecutions, the accused shall enjoy…the assistance of counsel for his defense.”
The 6th Amendment. The Constitution is pretty clear when it comes to a criminal defendant’s right to an attorney. What it isn’t clear about, is who’s responsible for funding these public defenders. Case law is of no help either. Is it the responsibility of the state? The federal government? Or is it a civic duty of every licensed attorney to offer up free services?
Recent years have evidenced a growing problem for public defenders created by legislative budget cuts and, as a result, offices are being forced to cut the already low number of public defense attorneys from their employment roster. As a result of these decreases in available funds to hire adequately trained criminal defense attorneys, defendants’ rights to an attorney are being jeopardized.
Public Defense Attorneys Often Get Blamed, Although It’s Not Really Their Fault
Public defenders often get a bad rap for not being effective attorneys, but when you consider the number of clients in many of their caseloads, it’s easy to see why many don’t have the time to meet with their clients until the day of trial. In 2009, the average caseload for Florida public defenders was 500 felonies and more than 2,200 misdemeanors.
According to the American Bar Association and the National Advisory Commission on Criminal Justice Standards, public defenders should take on no more than 150 felony cases per year or no more than 400 misdemeanor cases per year. The problem has only grown worse. More recently, 22 public defenders were left to handle more than 18,000 cases after budget shortfalls in Caddo Parish, LA. Anyone can easily do the math, but that’s roughly 818 cases per attorney. It’s simply too much for any one attorney to handle.
High Caseloads and Few Attorneys Means Offices Are Forced to Turn to Alternative Means
Caddo Parish’s lack of statewide funding forced their public defender’s office to cut 12 attorneys from their already diminished staff. The office was forced to fill the void and started assigning cases to any lawyer within the city whether they had any criminal experience or not. This means insurance attorneys, real estate attorneys, tax attorneys, you name it; if they have a law license, their name is on the list.
Missouri’s public-defender system is struggling just as much. The Director of the Public Defender System went so far as to order the state’s Governor to serve as public defender due to the lack of funding to hire enough defense attorneys to handle their caseload. Missouri and Louisiana aren’t alone, as it’s becoming a national problem.
Budget Cuts Are a Major Source of the Problem, But A Standard Needs to Be Set
Public defense budgets often get overlooked because most of the money goes to the other side of the criminal justice system—prosecution, police, and corrections. It makes sense that, with a tough on crime attitude, legislators want to put their money where their mouth is, but it can’t be at the expense of defense counsel because it’s just as important. The issue really stems from a lack of guidance on where the money should come from.
The landmark Gideon v. Wainwright decision held that the 6th Amendment applied to the states via the Due Process Clause of the 14th Amendment and, thus, required state courts to provide lawyers for all indigent criminals unable to hire their own counsel. The decision didn’t address how this right was to be implemented though. Did the decision effectively require states to solely bear the cost of hiring public defenders?
Some feel this isn’t a state’s burden to bear. If the federal government is responsible for protecting our constitutional rights, should that include the responsibility to ensure funding is available? If funding is not guaranteed at the state or federal level, how do we ensure a defendant’s due process rights to effective counsel are upheld?
The common argument in favor of using federal tax dollars to hire well-trained public defenders is that ineffective assistance of counsel is an easy basis to overturn a verdict and, thus, risks putting guilty defendants back on the streets. That same argument can apply to the states, as well. But, it shouldn’t just be about the risk of putting guilty defendants back on the street—it’s a constitutional right and one that’s imbedded in our history and, regardless of who’s responsible, the underfunding issue is an area that needs addressed.
What good does it do to have counsel if they’re not effective? No person afforded the capability of hiring their own lawyer would choose a real estate attorney to defend them in their capital murder case. Would you hire a dermatologist to remove your brain tumor? They both went to medical school and they’re both doctors, so why not?
Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law